Equal Protection for Economic Liberty: Is the Court Ready?

David Bernstein, 1991 graduate of the Yale Law School,
has just completed a clerkship on the U.S. Court of Appeals
for the Sixth Circuit, and now practices law in Washington, D.C.

Executive Summary

When President Bush nominated Clarence Thomas to the
U.S. Supreme Court, pundits were certain that Thomas's confirmation hearings would focus on his positions on abortion
and affirmative action. Although those issues did come up at
the hearings, the Democratic senators saved their most probing and hostile questions for the issue of constitutional
protection of economic liberty. They grilled Thomas about
his professed affinity for the writings of Stephen Macedo of
Harvard University and Richard Epstein of the University of
Chicago Law School, two exponents of greater judicial protection for economic liberty.(1) And they also asked Thomas narrower, more specific questions, such as: Did he think that
minimum-wage laws violated the Constitution? Should judicial
protection of property rights be expanded at the expense of
Congress' regulatory power? What is the scope of Congress'
power to regulate commerce?

That constitutional protection for economic liberty
should have been a major focus of a Supreme Court confirmation hearing in 1991 is an extraordinary development in the
history of American constitutional law. During the New Deal
era, a liberal Supreme Court reversed dozens of precedents
that had restricted the power of government to regulate economic activity. From that time until the late 1970s, there
was almost unanimous agreement among legal scholars on both
the left and the right that the Supreme Court's pre-New Deal
protection of economic liberty--stretching back for a century and a half--was a mistake that should never be repeated.

Beginning in the late 1970s, however, a few dedicated
legal scholars began to revive the idea that the Constitution limits government power in the economic sphere and that
the judiciary should enforce those limits.(2) At first the
mainstream legal community ignored the works of those
scholars. But as the Reagan Revolution transformed the
ideological character of the federal judiciary, the intellectual climate changed as well. Suddenly, scholars who had
been dismissed as eccentrics by mainstream legal academia
had the attention of the federal bench.(3) Meanwhile, scholarship and discussion relating to economic liberties
exploded.

Yet, despite all of that activity, there has been relatively little movement in the courts toward greater protection of economic liberty.(4) The biggest obstacle has been
the Supreme Court's refusal to reconsider the decisions of
the last six decades that have eviscerated constitutional
protection of economic liberty. Even under the current
conservative Court, the best one can say is that things have
not deteriorated further. Yet, with the Court's opinions
often focusing on the original intent and plain meaning of
the Constitution, there is still hope that economic liberty
may once again take its place among the constitutional
rights strongly protected by the Constitution.